Bishop and Dent (No 2)

[2016] FamCA 1083

FAMILY COURT OF AUSTRALIA

BISHOP & DENT (NO 2) [2016] FamCA 1083

FAMILY LAW – CHILDREN – Parental responsibility – Where the father has been the primary carer – Where previous court orders allocated parental responsibility to the father – Where both the Single Expert and Family Consultant recommend sole parental responsibility to the father – Where the mother has not attended to advocate for her position – Ordered sole parental responsibility allocated to the father

FAMILY LAW – CHILDREN – Time the child should spend with the mother – Where the mother wishes to spend time with the child – Where the child has an attachment to the mother – Where the mother’s capacity is flawed – Where the mother cannot prioritise the child’s needs above her own – Where the father has a criminal history – Where the father has past alcohol dependency – Where the evidence supports the father is now sober and law-abiding – Where the father is child focused – Where the mother interferes with the child’s support services – Where the mother has intimidated and harassed staff at the child’s educational facilities – Ordered that the child spend no time with the mother – Ordered restraints placed on the mother

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Mr Bishop

RESPONDENT: Ms Dent

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: (P)NCC 2650 of 2014

DATE DELIVERED: 6 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 5 & 6 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Betts

SOLICITOR FOR THE APPLICANT: Michelle Thomas Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

Jennifer Blundell & Associates

Orders

1. All prior parenting Orders made in the Federal Circuit Court and in this Court in relation to B born … 2011 (“the child”) are discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The child shall spend no time with the mother.

5. The mother is at liberty to send letters, cards and gifts to the child at Christmas, Easter and on his birthday.

6. Otherwise than in accordance with these Orders, the mother is restrained by injunction from:

   (a)Attending at or communicating with any preschool, school, out-of-school hours or holiday care service that the child may be enrolled in or attend from time to time;

   (b)Attending at any sporting or extra-curricular activity the child is engaged in, or communicating with any provider of such services to the child;

   (c)Attending at or communicating with any health care professional  treating the child;

   (d)Attending at or communicating with any welfare or social service provider providing services to the child;

   (e)Contacting or attempting to contact the child other than in accordance with these Orders.

7. The father is restrained by injunction from:

   (a)Bringing the child into contact with Ms E born … 1994 (the maternal aunt);

   (b)Consuming alcohol while caring for the child;

   (c)Criticising the mother or any member of her family in the presence or hearing of the child or permitting any other person to do so.

8. Each parent shall keep the other informed of their current residential address, a contact telephone number and any available email address, and shall advise the other in the event of a change.

9. The father shall on two occasions in each calendar year send the mother a copy of the child’s current school report, and on one occasion in each calendar year send the mother a school photograph of the child.

10. The father shall be at liberty to provide a copy of this Order to any school or childcare service attended by the child, and to any health, welfare or education professional or extracurricular activity provider treating or providing services to the child.

11. The Independent Children’s Lawyer shall provide a copy of these Orders to the principal of F School.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bishop & Dent has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2650 of 2014

Mr Bishop

Applicant

And

Ms Dent

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These were competing applications for final parenting orders in respect of one child, B, a boy aged five years.

2. B has a congenital disorder the primary feature of which is ataxia, a lack of muscle coordination which affects movements. The father, too, has this disorder. The child has also been diagnosed with autism, moderate developmental delay, severe language delay and sensory processing disorder. The child presently attends preschool and will start his formal education in kindergarten in 2017.

3. This hearing was set down for four days commencing 5 December 2016.

4. On the first day, the mother was not present at Court.

5. On the Friday prior, 2 December 2016, at 4.45 pm, the mother had delivered a letter from a medical practitioner to the Court. It became Exhibit 1. By that letter, the mother foreshadowed her intention not to attend the hearing.

6. On the morning of the first day, the mother personally attended this Registry and delivered to Registry staff a handwritten letter addressed to me, which became Exhibit 2. The letter was an explanation of recent delay preparing an affidavit and a request that no decision be made until I had read that affidavit. It should be noted that the affidavit was, by that time, more than six weeks overdue.

7. At the commencement of the hearing, those two pieces of correspondence were provided to the parties and characterised by me as an application for adjournment. The other two parties opposed adjournment. To the extent that it was an application for an adjournment, it was refused for the reasons given ex tempore at the time. The application of the father proceeded undefended.

8. The first matter which then arose was access to the file from the Federal Circuit Court in relation to the older children of the mother. Counsel for the Independent Children’s Lawyer had made an oral application for access to that file on 18 November 2016 in the context of an earlier application by the mother for adjournment of this hearing. The mother opposed access to the file being granted. The application for adjournment was refused at that time for the reasons given. The Independent Children’s Lawyer was given leave to renew the application to inspect the file from the Federal Circuit Court on the first day of hearing.

9. The application for leave, having been renewed, was granted to both parties to inspect the file. Three documents were extracted, copied and tendered into evidence in these proceedings, namely;

   a)A Child Inclusive Conference Memorandum between the mother and the youngest of her four older children on 14 October 2016, which became Exhibit 4;

   b)Orders made in the Federal Circuit Court on 4 November 2016 in relation to the same child, which became Exhibit 5; and

   c)A Family Report dated 3 April 2012 in relation to the older children, which became Exhibit 6.

10. By agreement between the father and the Independent Children’s Lawyer, those three documents were provided to the Family Consultant, Dr D, who is the Family Consultant in these proceedings.

11. Having read that material, the Family Consultant gave evidence and was cross-examined on the afternoon of the first day. The Family Consultant changed her position as to time and communication, having read that material. The matter thereafter proceeded with tenders and by submissions.

12. The matter concluded at the end of the first day and Judgment was reserved. An order was made pending further order that all current parenting orders be suspended pending delivery of Judgment.

The Proceedings

1. The applicant is the father, Mr Bishop, aged 40. His household consists of himself and the child. They live in a two-bedroom house rented through the Department of Housing in Suburb F, a suburb of Newcastle. Modifications have been made to the house to assist the child, who has difficulty gripping.

2. The respondent is the mother, Ms Dent, aged 49. There is no evidence before me about the mother’s household. It is likely that her father regularly attends her home, because he has done so in the past.

3. The mother was previously married to Mr Dent. There were four children of that marriage: three boys, who are now young adults, and a girl, G, age 12, who lives with her father. All time between G and the mother was suspended on 4 November 2016 by order of a Judge of the Federal Circuit Court.[1] There are ongoing proceedings in that Court arising from the breakdown of the mother’s marriage. The only parenting dispute now is about the youngest child, G.

   [1] Exhibit 5

The History of the Relationship

1. In mid-2010, the parties began a relationship within weeks of the breakdown of the mother’s marriage. The mother had all four children of that marriage living with her exclusively, at least for the first four to five months after separation. The parties did not live together, but spent time together when they could at the father’s home. Either the mother’s father or the oldest of the four children cared for the other children at those times.

2. By late 2010, the mother was pregnant with the subject child. The child was born in 2011 and thereafter the relationship between the parties began to deteriorate. It continued on and off until 2014. The child lived exclusively with the mother for the first 18 months of his life, regularly seeing his father.

3. In about March 2013, the child moved to live primarily with his father by arrangement.[2] 

   [2] Affidavit of the father filed 21/10/2016, par 18

4. In October 2014, the mother declined to return the child to the father without notice. The father brought an application to the Federal Circuit Court for recovery.

5. The relationship between the parties then ended. Time between the child and his mother has been determined since by Court order.

The History of Litigation

1. On 20 October 2014, the father filed an Initiating Application in the Federal Circuit Court proposing sole parental responsibility, residence and time with the mother. The context for the application was the mother removing the child from the care of the father eight days previously.[3] Urgent interim orders for residence were made in the Federal Circuit Court and the child was returned to the father accordingly.

   [3] Affidavit of the father filed 21/10/2016, pars 34-35

2. In March 2015, a Single Expert Report was commissioned.

3. In June 2015, orders were made moving changeovers to a police station, as it was no longer possible for changeovers to take place at the child’s preschool for reasons which will be referred to later in these reasons.

4. In October 2015, the Report of the Single Expert was released. The recommendations were as follows: that the child remain in the care of the father, that there be substantial contact with the mother, perhaps as much as three days per week; and other orders such as non-denigration and restraint on the use of drugs and alcohol. There was a recommendation that both parents have some supportive counselling and that the Department of Community Services provide supervision at least for the next three years to oversee the welfare of the child.

5. In relation to parental responsibility, the recommendation was that the resident parent have parental responsibility. Dr C had read and taken into account the Report of Family Consultant Ms H, on the parenting arrangements for the mother’s four other children.[4]  Ms H had recommended sole parental responsibility and residence to Mr Dent in that Report.

   [4] Exhibit 6

6. The matter was not set down for hearing in the Federal Circuit Court. An order was made for a further Report by a Family Consultant. I am unaware of why this course was taken.

7. On 22 February 2016, the Family Report was released. The recommendations in that Family Report were as follows: that the father have sole parental responsibility for the child, in particular, it was recommended that the father make all the health and educational decisions for the subject child without the need to involve the mother in any decision making or consultation; that the child live primarily with the father; and that the mother spend each alternate weekend with the child from Friday afternoon to return to day care Monday morning. There were specific recommendations about excluding the mother from involvement in the treatment of the child.

8. On 23 March 2016, the matter was transferred to this Court.

9. On 13 July 2016, the mother advised a Registrar of this Court that she was no longer legally represented.

10. The proceedings came before me on the first day of a Less Adversarial Trial on 22 July 2016. On that day, given its history, the parties were told that the matter would be given a hearing commencing 5 December 2016.

11. On 4 August 2016, the mother filed an application for inspection of documents. There had already been some difficulty over the mother’s attitude to documents produced in response to subpoena. It seems, although I’m not entirely clear, that the mother had inspected material despite the restriction of inspection by legal representatives only.

12. On 19 August 2016, the mother filed her Amended Response. She sought equal shared parental responsibility, residence with her and alternate weekends for the child with the father.

13. On 23 August 2015, directions were made for preparation for trial. The four days commencing 5 December 2016 were confirmed. There was an indication of who witnesses would be. At that time, restraining orders were made on the mother attending the child’s preschool and any providers of services to the child.

14. On 23 September 2016, leave was granted for all parties to inspect the material. The mother made an application for photocopy access to all documents, which was not granted, although leave was left open for particular documents to be copied.

15. On 14 October 2016, a Child Inclusive Conference was held in the proceedings involving the mother’s older children. That memorandum became Exhibit 4. The recommendation in the Child Inclusive Conference Memorandum was that all time between G, the youngest of the four children, and the mother, be suspended.

16. One week later, on 21 October 2016, the mother filed an Application in a Case asking that the dates in this matter be vacated. That application was subsequently refused on 18 November 2016. During that Court event the mother did not raise any potential delay to the provision of an affidavit, which had not been filed at that time.

17. On 5 December 2016, the first day of trial, the mother did not appear, in the circumstances already referred to.

18. The documents relied on in respect of the application were as follows: 

    The Applicant Father

    (a)Amended Initiating Application filed 19/07/2016;

    (b)Affidavit of the father filed 21/10/2016;

    The Respondent Mother

    (c)Amended Response filed 19/08/2016;

    Reports

    (d)Family Report of Dr D dated 22/02/2016

    (e)Single Expert Report of Dr C dated 1/10/2015.

The Law

1. This is an application for parenting orders pursuant to s 64B(2) of the Family Law Act1975 (Cth) (“The Act”). The best interests of a child are paramount in making parenting orders. The considerations set out in s 60CC(2) and (3) are mandatory considerations for the Court. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

2. I have considered the issue of parental responsibility, residence, time and communication and other specific issues and concluded that the following matters are relevant to the best interests of this particular child.

Parental Responsibility

1. The father has had the primary care of this child since he was about 18 months of age and by Court order since he was three. The mother and father do not enjoy a cooperative relationship or a mutually respectful one.

2. The mother has been affronted by the decision-making of the father and feels unjustifiably excluded from the life of the child. The mother has confronted those involved in the education and treatment of the child. It is a serious issue referred to in further detail in the context of capacity. Both the Single Expert and the Family Consultant have recommended sole parental responsibility to the father.

3. The Family Report[5] by Dr D says this:

   Based upon the above information, particularly the difficulties that all clinicians report with the mother, it is strongly recommended that the father have sole parental responsibility for the subject child. This is not a matter in which the parental responsibility can be shared and it would be detrimental to the long-term well-being of the subject child if there was shared parental decision-making.

   [5] Family Report of Dr D dated 22/02/2016, par 192

4. Dr C was less strong, stating that if there was found to be significant conflict between the parents, then the residence parent should take sole parental responsibility.[6] 

   [6] Single Expert Report of Dr C dated 1/10/2015, par 9

5. The Family Consultant engaged in preparing a report in the matter in the Federal Circuit Court recommended sole parental responsibility to the father, Mr Dent, in those proceedings, in these terms:[7]

   The Family Consultant’s view of the parties having shared parental responsibility is that the father should hold this sole parental responsibility as the mother’s assessed lack of empathy for the children’s needs will render it difficult for her to make decisions based on the children’s needs rather than her own needs at the time.

   [7] Exhibit 6, par 138

6. In circumstances where the mother has chosen not to attend to advocate for her position of change of residence back to her, nor to respond to challenges about her parenting methods, sole parental responsibility is the only safe course, given those recommendations. I note that the mother has proposed equal shared parental responsibility, which may be an indication of confidence in the father. It may equally be a way for her to regain authority in respect of those who deliver services and education to the child.

Additional Considerations

The nature of the relationship of the child with each of their parents and other persons

1. Turning to s 60CC(2)(a), there are no views specifically of the child which could be taken into account. At age five, he is not as advanced as his chronological age suggests. There is, however, a bond between himself and both his parents. That fact was confirmed by Dr D. There is certainly a bond between the child and the father, referred to by the Family Consultant as the primary attachment for the child.

2. Other than the two parents, the other likely relationship for the child is with his maternal grandfather. There is no evidence before me about that. However, the maternal grandfather was interviewed in the report for the four older children in 2012.

3. The Family Consultant referred to the maternal grandfather becoming easily enraged, and there was some speculation as to whether his unusual speech patterns and manner of dress represented some cerebral deterioration. He would now be 78 years, and I am unable to come to any conclusion about his involvement in the life of the subject child.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. In relation to each parent wanting to spend time with the child, I am satisfied that the mother does want to spend time with the child, more than she does now. Indeed, her application is for the child to return to live with her. The father is committed to providing full-time care for the child, and he has been doing that for three and a-half years.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. In respect of the impact of a change of circumstances, this is a matter of considerable concern.

2. Dr C referred to the father needing the respite which would come with the child spending time with the mother.  There is also the fact that the child is used to seeing his mother, knows her and is attached to her. The father ensures the attendance of the child at all therapies and appointments.

3. If there is to be a reduction of time between the child and the mother, I am satisfied that the father’s steady focus on the value of interventions for the child and the need for certainties and routines will be a benefit to him. However, no longer spending time with his mother will represent a loss for the child.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The next factor of relevance is capacity, and it is a significant matter. Tendered into evidence as a small sample of what was available amongst documents produced in response to subpoena were the following.

2. From the records of the child’s kindergarten, which became Exhibit 8, there are references to confronting approaches by the mother to a member of staff who was doing her best to be helpful.

3. There were complaints by the mother to the same member of staff about the way her name had been spelt on the child’s locker. The mother is said to have walked off in anger when the carer told the mother that she could not leave the room to obtain something the mother wanted, because she had children in her care whom she could not leave. That was in May of this year.

4. In April 2016, the mother is described as demanding and confronting, at 6 o'clock in the evening, with a young teacher, who finally told her that she had to leave.

5. On 13 May 2016, there is a note in the record that the mother had followed a teacher around, who was not the child’s teacher, until she described herself as feeling “intimidated and flustered”. The teacher also recorded that she had no chance to speak to another parent who was waiting to speak to her.

6. In May 2016, there was a confrontation by the mother over a teacher, where the mother demanded to know whether this teacher felt intimidated and uncomfortable when the mother was in the building. It is obvious that the mother had been told that that was the impact she was having on teachers in the preschool.

7. The mother followed up with an email that the staff members did not find her behaviour unacceptable. The note in the records is that the teacher had felt too fearful of the mother to acknowledge that she did feel intimidated in the mother’s presence. There is a reference to a harassment and intimidation of the staff by the mother.

8. In the records of I Care, there are references to the mother having yelled at a member of staff through the phone and to a staff member having felt “visibly shaky” after a lengthy conversation with the mother where the staff member felt she was losing confidence in her ability to cope.

9. There was a reference to the impact on staff members of the mother demanding information. After a very lengthy note of all that the mother had asked and, really, cross-examined about, the staff member records that when she hung up on the conversation with the mother, she then directed staff to turn all phones off and not to answer any further calls.

10. The staff member says this:[8]

    Following this whole event I felt very uneasy and immediately went to the bathroom as I felt like I was going to vomit. I was crying and very upset and my breathing was irregular. I did not want to answer the phone calls again. I felt unsafe.

    Other staff [named], as well other office staff supported me. Phones were off and doors locked.

    [Staff member M] contacted police and advised that if she calls again or comes to premises we can ask her to leave, not contact again or simply hang up and advise other office staff.

    [8] Exhibit 9

11. It is clear that the mother had an extreme impact on that occasion in 2015.

12. From the records of Ability Options, there are references to the mother opposing the provision to staff of court orders which would have established the father’s authority in decision-making. There is also reference to the father bringing the child back in distress after a voluntary mediation between the parents and that the staff had had to work out a strategy for dealing with the mother.

13. From the records of the Department of Family and Community Services, which became Exhibit 11, there is a reference to the mother becoming aggressive and hostile in a meeting, that when both parties had left, the father came back in and asked if he could leave through the rear exit with the child. This was done.

14. Staff reported that the mother waited at the front of the building for the next two hours. The record of the mother’s conduct during her time with departmental staff was, “staring eye contact and closed body language.”

15. From the records of J Group, the child’s speech therapy provider, there is a reference on 7 October 2014 to the mother directly involving the speech therapy in a custody dispute between herself and the father. The mother is reported as having said both, “It won’t reflect well on me if he has no therapy” but also, “I want a guarantee he won’t be given to the father after a session.”  This was the mother really forcing the situation where she wanted the staff to ensure that the child would be returned to her care if she permitted therapy.

16. On 5 May 2015, the records reveal that the mother rang to change the child’s appointments for speech therapy on the basis that she didn’t want them “on her days”. The mother has maintained this attitude up to date of trial. She would not agree to vary her time to release the child for special sessions on Wednesday.

17. In the father’s affidavit there is a reference to the occupational therapist for the child advising him that she had to cease seeing the child because of the mother’s behaviour and being “abusive on the phone”.[9]

    [9] Affidavit of the father filed 21/10/2016, pars 91-106

18. The Child Inclusive Conference Memorandum for the mother’s daughter is extremely relevant under the heading of capacity also. On that occasion, the mother had imposed some discipline on the child in a particular way. The mother had been due to have a phone call with the child on a Friday evening and events unfolded in this way:[10] 

    She [the child] said that there had been a phone call she had missed on a Friday night and when she rang the mother back later the mother was angry at her, yelled at her, used the “f” word, (which she hadn’t used previously). “then I started crying and shaking and I kept saying sorry and I was scared and I said can I please go and she said ‘no’.  Then I hung up and grandad gave me a hug because I was shaking.”

    [10] Exhibit 4

19. The mother denied to the Family Consultant saying anything in a cross manner to the child on the phone call. She conceded that the child was distressed, but claimed that this was because the father and grandfather had verbally abused her because she had missed her phone call with her mother. The Family Consultant dismissed this version of events which did not appear to fit with what happened after the phone call.

20. The child was due to see the mother soon afterwards for a five hour period during the day. As the mother drove away with the child, the child reports that the mother said to her, “I need to talk to you. This is the consequences, because you were late on the phone call when you called me back.”  The mother then pulled over in the car and reclined back in her chair. She did not allow the child to leave the car. She confiscated the child’s watch, which she was playing with. The child asked to listen to music on the radio or to go to the church, which they sometimes did together. The mother said, “No.”  They then drove to another venue where the mother stopped to use the toilet. The child was not given that opportunity. The mother then drove to the beach and they continued to sit in the car. The mother allowed the child to get out of the car, which she did. The mother then drove to another car park and the child started walking. The mother picked her up and drove her home. They had sat in the car all day. The child reported that she had no food and no drink that day. The mother later mailed the child’s watch back to her.

21. When challenged about this episode, the mother conceded that she and the child had sat in the car for the duration of the visit, because she, the mother, was disappointed in the child and it was “her consequence”. The mother denied being angry or upset.

22. When asked how she thought G would be reacting, the mother is reported as unable to put herself in the child’s shoes. “I can’t say what was happening for her.”  Rather, the mother was confident that the child needed firm boundaries and that the discipline implemented was appropriate in the circumstances.

23. As a result of these two incidents and perhaps more, the child said she no longer wanted to see her mother. She would still be shaking if she had to see her, “Because if I see her, she will probably be worse. She will be even more angry because I haven’t seen her.”  The child says she did not want to see her mother even in a supervised centre. It was those incidents that gave rise to the order suspending time between the child and the mother.

24. Counsel, on behalf of the father put a submission, which I accept, about this issue, that:

    If the mother was unable to focus on the likely reaction and feelings of an articulate 11 year old, what chance did a five year old with developmental delay have in such a situation?

25. Continuing in respect of capacity, the Family Consultant in 2012, in respect of the four older children, referred to the mother being challenged about some of her parenting practices and responding by simply staring blankly at the Family Consultant and declining to answer. One of those incidents was that one of the boys, then aged 17, had been earning money from employment. The mother banked it into an account in her name. She was resistant to changing it to an account in the father’s name and was unable to nominate when she would be prepared to put it into an account in the boy’s name.

26. The mother also referred to the fact that her father had been in the habit, throughout her marriage to the four children’s father, of coming to the home seven days per week for approximately 12 hours every day to undertake child care and the work of the household. The mother referred to herself as being “occasionally at home”.

27. It is obvious from the evidence that the mother, in the first months of separation from the older children’s father, was often away from the home; she conceded two or three times a week, in the evening, between 5.00 pm and 10.00 pm. It is an unusual set of facts. The mother was not allowing the four children to spend any time with their father, at least, in the first four or five months after separation and it was, at that time, that she was developing her relationship with the father in these proceedings. Her father’s assistance in the home released her from the home, not to be available to the children.

28. There are occasional references throughout the father’s material to odd marks and scratches and bruises on the child. I am completely unable to come to any conclusions about how those things occurred. The father refers, in his affidavit, at paragraph 12, to his witnessing the mother slapping the subject child on the bottom when he was not wearing a nappy at the age of four to five months old. The mother told the father that she was frustrated with the child’s crying. Given that this was the mother’s fifth child, it is a matter of some concern.

29. Accordingly, the mother’s capacity appears to be quite flawed in important respects in terms of her ability to focus on the child’s needs and to give them priority over her own.

30. In relation to the child himself, he has development delay, which means that his transition to school in 2017 will be a particularly important stage of life for him. His father understands his need for routine and support and understands his disability.

Any other fact or circumstance that the court thinks is relevant

1. Importantly, the father himself has a past criminal history and a history of drinking to excess. He has been antisocial as a young man and spent time in gaol. His evidence is that he struggled with his own disability and was the subject of bullying at school. As he matured, he found employment. The evidence is he has been sober since 2010 and law-abiding since 2007. He has made this child the focus of his attention and has committed himself to a raft of appointments and interventions for the child which have been beneficial to him.

2. Dr C assessed the father as functioning at a lower intellectual level than the mother. However, the father is undoubtedly child-focused. Dr D, the Family Consultant, was unwavering in her evidence that the balance between maintaining the existing bond with the mother, who is not sufficiently child-focused, against the father, with his possible risk of relapse of abuse of alcohol or misconduct, fell heavily in favour of the child being cared for exclusively by the father.

3. I raised with Dr D, in the context of the loss for the child of his relationship with the mother, the possibility of identity contact four times a year. Dr D did not consider that that would be of benefit, especially as the child might be set up for disappointment if the mother chose not to attend, or chose not to attend on time, or was aggressive and confronting in relation to contact centre workers. Certainly, the father’s affidavit refers to many occasions when the mother was erratic in terms of returning the child on time. [11]

   [11] Affidavit of the father filed 21/10/2016, pars 133-150

Conclusion

1. Whether the mother’s conduct is insightless or self-absorbed is really irrelevant in terms of this child’s needs. It is, however, important that he knows his mother cares about him and the provision of cards and gifts, if the mother chooses to do that, will be made available through orders.

2. For all these reasons, I have come to the conclusion that the child should continue to live with his father and that the father should have sole parental responsibility with express restraints on the mother attending at his school or on any of those practitioners who provide therapeutic assistance for him. That there should be no direct time between the mother and the child and that communications should simply be by cards and gifts in the way referred to.

3. Orders are made accordingly.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 6 December 2016.

Associate: 

Date:  19 December 2016